What do two geeks do on a Sunday? Go to the Computer History Museum.
I would hold a Legal Geeks conference at the Computer History Museum or The Tech Museum of Innovation if we ever put one together. I always hold those with the skill to design, engineer and turn an idea into a reality in very high regard. Many times those ideas have been drawn on cocktail napkins, but every one of them has involved vision and years of hard work.
The 7th Wonder of the Geek World
I had the good fortune to enjoy the Computer History Museum with Leslie Crystal.
For those who have not met Leslie, she is an IP paralegal, cosplayer and classic geek.
She also plays a mean game of Pong.
In the Valley of Pong
My family owned Rooster T. Feathers Comedy Club in Sunnyvale during the late 1990s. Prior to becoming Roosters, the building was the Country Store; prior to that, it was Andy Capps’ Tavern.
The building holds the honor of being where the first Pong machine was played.
We often had geeks stop by on a pilgrimage to see the spot where the Pong machine was set-up. I am sure whoever lives at 1066 Crist Drive in Los Altos, California has similar experiences with those wanting to see Steve Jobs’ childhood home.
Leslie and I enjoyed the video game section of the Museum. Video games were a happy part of my growing up in the 1980s. That being said, it was emotionally disturbing to see a Colecovision from my childhood as a museum exhibit.
Just How Much Litigation Involves Video Games?
Answer: A lot. Lawyers have unlimited lives when it comes to video games and lawsuits.
Pong had seen its share of litigation. Here is how one Court accounted for the creation of the video game industry:
39. Pong was designed and built by Nolan K. Bushnell and Allen Alcorn of Atari.
40. Prior to August 21, 1969, Bushnell had had extensive experience in the field of coin-operated amusement games, had been employed as a television technician, and had had experience in the programming of general purpose, stored program, digital computers and had had experience in the programming of general purpose, stored program, digital computers operated in conjunction with cathode ray tube displays. Prior to this date, he had not invented, designed, built, or constructed any apparatus for playing games using a television type, raster scan display; and he had no knowledge of the existence of any apparatus for playing games using a television type, raster scan display:
41. Prior to August 21, 1969, Bushnell had no knowledge of the existence of any apparatus using a cathode ray tube display for simulating the playing of the game table tennis or ping pong.
42. On May 24, 1972, and while employed by Nutting Associates, Inc., Mountain View, California, Bushnell attended the demonstration of the Magnavox Odyssey television game in Burlingame, California and saw the game played; he had gone to that show for the specific purpose of seeing the Magnavox Odyssey television game. He saw the Odyssey television game in use to play a game simulating ping pong and actually played that game.
43. Some time after June 26, 1972, Allen Alcorn became an employee of Atari and Bushnell assigned Alcorn the task of developing a video game which would simulate a tennis game. [*15] His work resulted in an arcade video game named “Pong”, first manufactured and sold by Atari in 1973.
44. The display of this game, shown on a picture tube screen, included a white rectangular symbol on the right side of the screen representing a first player, a white rectangular symbol on the left side of the screen representing a second player, and a symbol which moved across the screen representing a ball. Player controls were provided so that each human player could move his corresponding player symbol on the face of the screen. Each human player manipulated his corresponding symbol to intercept the path of the ball as it moved across the screen. When the player symbol intercepted the ball symbol, i.e., two symbols appeared to be coincident on the screen, the motion of the ball was changed and, in particular, the horizontal motion of the ball was reversed so that it traveled back toward the other player.
45. Following the commercial introduction of the Atari arcade Pong game, many other manufacturers commercially introduced similar arcade games having a display substantially the same as Pong. Those games included the games TV Ping Pong, TV Tennis, Olympic TV Hockey, and TV Goalee by Chicago Dynamic Industries, Inc., the games Paddle Ball, Pro Hockey, Pro Tennis, and Olympic Tennis by Seeburg Industries, Inc., Paddle Battle and Tennis Tourney by Allied Leisure Industries, Inc., and Winner and Playtime by Midway Mfg. Co.
46. The Atari arcade Pong game was the first arcade television game to be sold in large quantities. It, and games substantially identical to it, were responsible for the creation of the arcade television game industry.
The Magnavox Company & Sanders Associates, Inc., v Mattel, Inc., et al, 1982 U.S. Dist. LEXIS 13773 at *13-16; 216 U.S.P.Q. (BNA) 28.
Even the Courts Had Pacman Constitutional Fever
There is a certain joy in playing Pacman. Leslie demonstrate her skills playing the 1980s classic. However, she was not the only one who has played Pacman. Many judges and members of Congress have as well.
The drafters of the Kastenmeier Amendment somehow convinced the Congress that core judicial power, which in our federal system historically may be exercised only by Article III judges in the adjudication of private rights, may be subordinated constitutionally to core bankruptcy power and disregarded when private rights are adjudicated in an action known as a core bankruptcy proceeding. Perhaps this core-may-eat-core theory of constitutional law was so readily accepted by Congress because we are all enamored of computer games in which it is permissible for a charismatic, electronically-created creature to gobble up every other creature that crosses its path and moreover score points by doing so. Why not introduce such an enigmatic, animated creature into the field of bankruptcy law in the form of a core bankruptcy proceeding and let it feed on private rights. We might denominate this Pacman constitutional law.
Simply put, the Supreme Court has rejected the Pacman theory of constitutional law on which the Kastenmeier Amendment is based.
In re L.T. Ruth Coal Co., 66 B.R. 753, 772-774 (Bankr. E.D. Ky. 1986).
When Geeks Go to Trial Over Computers
Honeywell, Inc. v. Sperry Rand Corp., is arguably the grandfather of eDiscovery cases. The case involved the man who invented the first computer, John V. Atanasoff, who was a professor at Iowa State University from 1937 to 1942. His story even involves a long drive, stopping for a beer and making notes on a napkin.You would think it took place in Silicon Valley, except it was Iowa and a bar at the Illinois border.
Atanasoff and Clifford Berry began building the first computing machine in December 1939. The device was “capable of solving with a high degree of accuracy a system of as many as 29 simultaneous equations having 29 unknowns.” Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, at *74-79 (D. Minn. 1973).
Plaintiff Honeywell had 25,686 trial exhibits; the Defendant 6,968. The Court described the trial exhibits as follows:
Many of the exhibits were extremely voluminous, including both documents of great length and also collections of multiple documents designated as single exhibits. For example, PX-1 is a 496 page book describing the 19th century work of Charles Babbage relating to early digital computing, and DX-2 is a collection of documents relating to the ENIAC patent application, occupying a four-drawer legal filing cabinet; DX-1, the ENIAC patent itself, comprises 91 sheets of drawings and 232 columns of closely printed text.
Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, 7-8 (D. Minn. 1973).
The Computer History Museum has replicas of the Babbage Difference Engines 1 and 2. The engine fills a room.
The complexity of patent litigation has not decreased with time. One only needs to look at the Apple v Samsung litigation to see that complex lawsuits still have many exhibits. We can just organize them better.
The Game’s Not Over
The Computer History Museum always gives me a sense of Zen about eDiscovery. The exhibits represent lifetimes of extremely hard work and dedication from the 19th and 20th Centuries. I do not see technology as being a source of litigation, but one of wonder. I truly respect those who can dream and create the future.